Gill v. I.N.S.

• Decision Date: 18 August 2005
• Docket Number: Docket No. 03-40612.
• Citation: 420 F.3d 82
• Parties: Shobinder GILL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICES, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

420 F.3d 82

Shobinder GILL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICES, Respondent.

Docket No. 03-40612.

United States Court of Appeals, Second Circuit.

Argued: April 18, 2005.

Decided: August 18, 2005.

Charles L. Mester, New York, New York, for Petitioner Shobinder Gill.

Dale A. Goldberg, Assistant United States Attorney for the Southern District of Ohio, Dayton, Ohio (Gregory G. Lockhart, United States Attorney, on the brief) for Respondent Immigration and Naturalization Services.

Before: OAKES, JACOBS, and STRAUB, Circuit Judges.

Judge JACOBS dissents in a separate opinion.

STRAUB, Circuit Judge.

Petitioner Shobinder Gill petitions for review of a Board of Immigration Appeals ("BIA") opinion finding Gill removable based on a conviction of a "crime involving moral turpitude" ("CIMT") under 8 U.S.C. § 1227(a)(2)(A)(i). Gill argues that his crime of conviction, attempted reckless assault under New York Penal Law § 120.05(4), is not a CIMT because it requires only a reckless state of mind, whereas some positive intent is required for a CIMT. Gill does not specifically argue that his conviction for attempted reckless assault does not demonstrate the requisite mental state for a CIMT because it incoherently combines the specific intent element of criminal attempt under New York law with the recklessness standard of § 120.05(4). Nonetheless, we exercise our discretion to consider this subsidiary issue sua sponte and find that the BIA committed clear error in ordering Gill's removal based on a crime that, because it is legally impossible, demonstrates no clear mental state.

The legal incoherence of Gill's crime of conviction was not argued in the administrative proceedings below. However, this argument is subsidiary to the general argument Gill did make before the BIA: that his crime of conviction did not reflect a sufficiently culpable mental state to be designated a CIMT. Therefore, we hold that our basis for reversing the BIA's decision is not precluded by the exhaustion requirement for immigration appeals, 8 U.S.C. § 1252(d)(1), which provides that "[a] court may review a final order of removal only if . . . (1) the alien has exhausted all administrative remedies available to the alien as of right," or by any judicial exhaustion doctrine. Accordingly, we reverse the BIA's order of removal, and remand with instructions to close Gill's removal proceedings.

BACKGROUND

Gill, whose father is a United States citizen, was admitted to the United States as a visitor in 1989, at age nine, and later granted lawful permanent resident status in 1994. On June 24, 1999, Gill pleaded guilty to attempted assault in the second degree in violation of New York Penal Law ("N.Y.P.L.") § 120.05(4), which proscribes "recklessly caus[ing] serious physical injury to another person by means of a deadly weapon or a dangerous instrument."¹ He was sentenced to nine months' imprisonment. On August 12, 1999, the Immigration and Naturalization Service ("INS")² filed a notice to appear, charging Gill as removable based on his attempted assault conviction, which the INS characterized as a CIMT.³ Gill argued that his crime was not a CIMT because § 120.05(4) requires only a reckless state of mind, whereas some positive intent is required for a CIMT.

The IJ agreed with Gill in a decision dated October 11, 2000, then reversed himself on February 1, 2002, after the INS moved for reconsideration. In his later order, the IJ found that, under New York law, reckless conduct involves a conscious disregard of "a substantial and unjustifiable risk" of harm, and that this disregard can, in certain circumstances, constitute a sufficiently culpable mental state to render the offense a CIMT. The BIA affirmed by a decision issued September 2, 2003, holding that, although not all crimes of recklessness constitute CIMTs, Gill's crime did so because it involved two aggravating factors: the serious physical injury which resulted from Gill's conduct and his use of a deadly weapon. Although neither the BIA nor the IJ found any significance in the fact that Gill's conviction was for attempted assault, both noted this fact in their opinions.

This appeal followed.

DISCUSSION

I. Jurisdiction

Because the specific argument on the merits which we discuss in Section III infra was not raised before the BIA, we must decide at the outset whether we have jurisdiction to consider it.

Section 1252(d)(1) of Title 8 of the United States Code provides, in pertinent part, that federal courts "may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right." While there is no question that this exhaustion requirement, being statutory, is mandatory, a question does arise as to the level of specificity at which a claim must have been made to have been "exhausted" under § 1252(d)(1).

Various decisions by this Court have spoken to this question obliquely. In Beharry v. Ashcroft, for example, we held that the District Court had lacked jurisdiction under § 1252(d)(1) to consider Beharry's claim for relief under 8 U.S.C. § 1182(h) (" § 212(h) relief")⁴ because he had not previously sought § 212(h) relief from the INS. 329 F.3d 51, 62 (2d Cir.2003). Because Beharry involved a habeas petition and the law was unclear as to whether § 1252(d)(1) applies to such,⁵ we also considered whether the "less stringent" judicial exhaustion requirement prevented the consideration of Beharry's § 212(h) claim. We found that it did, in part because Beharry's failure to claim § 212(h) relief below "left sizable gaps in the factual record presented to us on appeal" such that this Court would be "hard-pressed" to decide the merits of his legal claim. Id. at 62; see also Theodoropoulos v. INS (Theodoropoulos II), 358 F.3d 162, 165-69, 174 (2d Cir.2004) (holding that § 1252(d)(1) barred habeas review where petitioner, in open court, had expressly waived his right to appeal the IJ's decision), cert. denied, ___ U.S. ___, 125 S.Ct. 37, 160 L.Ed.2d 34 (2004). Similarly, we held in Foster v. INS that, under § 1252(d)(1), an alien's "generalized protestations that his removal was improper" did not allow him to argue on appeal that his crime of conviction (first degree manslaughter) was not a "crime of violence" or "aggravated felony" under immigration law. 376 F.3d 75, 77-78 (2d Cir.2004). In so holding, we explained that a petitioner must "raise issues to the BIA in order to preserve them for judicial review." Id. at 78 (internal quotation omitted).

While we held in Beharry that the exhaustion requirements preclude a petitioner from raising a whole new category of relief on appeal, in Foster that a petitioner must have raised an issue below to present it on appeal, and in Theodoropoulos II that the statutory exhaustion requirement precludes a petitioner from bypassing the administrative review process altogether, we have never held that a petitioner is limited to the exact contours of his argument below. To the contrary, in Restrepo v. McElroy, 369 F.3d 627 (2d Cir.2004), we held that § 1252(d)(1) did not prevent us from considering a wholly new reliance argument on appeal because Restrepo did "raise[ ] the general issue of the AEDPA's retroactivity . . . in his habeas petition, and we enjoy broad discretion to consider subsidiary legal arguments that were not specifically raised below." Id. at 633 n. 10 (emphasis added). We used "subsidiary" in a broad sense; the reliance argument Restrepo made in his administrative proceedings was that AEDPA (which foreclosed a form of relief sought by Restrepo) should not apply retroactively to crimes committed, or convictions entered, before the law's effective date, whereas the "subsidiary" argument he raised on appeal was that AEDPA should not apply to him because he decided, in reliance on the law pre-AEDPA, to delay his application for relief until a later date when he would be better able to demonstrate rehabilitation.

In Drax v. Reno, 338 F.3d 98, 112 n. 19 (2d Cir.2003), we similarly held that § 1252(d)(1) does not limit our review to those arguments specifically raised below. In that case, we found jurisdiction to decide Drax's eligibility for a certain type of relief from deportation — "Gabryelsky relief" — where the relief was not specifically sought before the BIA but was "merely an extension of the argument his counsel raised directly before the BIA — that the Immigration Judge erred in holding that no relief was available on account of the retroactive application of [a subsequent amendment]."⁶

The rule that emerges from this precedent is that § 1252(d)(1) bars the consideration of bases for relief that were not raised below, and of general issues that were not raised below, but not of specific, subsidiary legal arguments, or arguments by extension, that were not made below. Our decision in Restrepo and Drax not to interpret § 1252(d)(1) to require complete conformity between an alien's argument below and on appeal makes particular sense given that immigration law has undergone rapid changes in recent years and given the fundamental interests at stake.⁷ Because Gill raised below the general issue, as characterized by the IJ in his February 1, 2002 order, of whether "Attempted Assault in the 2nd degree . . . . involve[s] the required mens rea or a guilty corrupt mind or vicious motive" (emphasis added), we have jurisdiction to consider the specific subsidiary argument (or argument by extension) that Gill's conviction for "attempted reckless assault" fails to meet the mental state requirement of the CIMT definition because, under New York law, such a conviction is legally incoherent.⁸

We further find that the judicial exhaustion doctrine would not bar consideration of a specific, subsidiary legal argument, particularly one that is purely legal and falls outside the INS's traditional area of expertise. See McCarthy v. Madigan, 503 U.S. 140, 145-46, 112 S.Ct. 1081, ...